Hurricane Sandy and Environmental Compliance

by Pierce Atwood LLP

As we all prepare for -- or cope with -- the impacts of this storm, we hope you and your loved ones stay safe.  Unfortunately, environmental impacts are inevitable.  We are mindful that EPA was criticized after Katrina for not enforcing environmental regulations, and some expect much more attention after Sandy.  Here are a few thoughts to keep in mind.

Releases of Hazardous Substances -- Immediate notification of releases is typically required for reportable quantities of hazardous substances, and in some cases, for any release of hazardous waste or hazardous matter.  Cleanup is often mandatory.  Under the federal Superfund law, storms (including Hurricane Gloria in 1985) have not qualified as an “Act of God” defense to liability for cleanup of hazardous substance releases.

Stormwater Management -- Whether or not you have a stormwater management plan or have a stormwater permit, you will want to make sure that your structural Best Management Practices are functioning properly.  These include silt fencing, hay bales, and retention ponds.  Failure of BMPs can result in penalties.  On the bright side, it may be possible to use the storm event as an opportunity to satisfy a quarterly sampling requirement.

Oil Spills – Maintaining secondary containment will likely need attention under oil SPCC requirements, and there is no meaningful “Act of God” defense for release of oil or petroleum products.  Federal and state rules require notification of oil releases, including National Response Center notification for sheens (or worse) on navigable waters.  It is likely that there will be oil tanks that will break free and become water borne and again, notification is required.

Wastewater Discharge Bypass and Upset -- In significant rain events, water treatment systems can be overwhelmed and result in releases that violate license and regulatory requirements for flow and regulated parameters.  These affirmative defenses require proper notification for bypasses and upsets, which are governed by specific rules that must be followed to the letter.  There are immediate reporting requirements, with written follow up requirements within five days (not five business days).

Air Emissions -- Air licenses and laws accept the possibility of “malfunctions” that can be storm related, but those will have to be carefully documented.  Many use emergency power generators under storm conditions, but licenses and rules require recordkeeping of use and impose total hourly limits that control use and could apply if utility power is unavailable for long periods of time.

Property Damage and Insurance Claims -- Determinations of insurance coverage turn on the policy coverage and the facts of each instance.  Thus, insurance coverage may or may not be available for damage caused by Sandy, depending on the loss sustained and policies you hold (though coverage is only rarely available for addressing liability for “pollution”).  If you suffer a loss, it is important to give your insurer or insurance agency prompt notice, take reasonable steps to protect the property from further damage, and make a detailed inventory of the damaged property (with photographs if possible) for later reference.

We hope that you have no issues from the storm, but if you have questions or concerns, please feel free to call us on our cell phones or by email, which we intend to monitor, even if our office is officially closed.

Ken Gray:  207-791-1212 (office); 207-450-0155 (cell);
William Taylor:  207-791-1213 (office); 207-632-1880 (cell);
Dixon Pike:  207-791-1374 (office); 207-653-9479 (cell);
Brian Rayback:  207-791-1188 (office); 207-653-0717 (cell);

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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