By: Jonathan Kalmuss-Katz

The budget legislation signed by New York Governor Andrew Cuomo last month contains several high profile environmental provisions, including more than $1.5 billion in grants for drinking water infrastructure improvements; the creation of a new Drinking Water Council to develop a plan for addressing “emerging” contaminants such as perfluorooctane sulfonate (“PFOS”) and 1-4 dioxane; and $300 million for the state’s Environmental Protection Fund.  The budget also includes a less-noticed addition the Environmental Conservation Law (“ECL”), which gives the Department of Environmental Conservation (“DEC”) new statutory authority to inspect and require the remediation of a potentially vast range of “solid waste sites.”

The budget legislation adds a new Title 12 to Article 27 of the ECL, titled “Mitigation and Remediation of Certain Solid Waste Sites and Drinking Water Contamination.”  The legislation defines “solid waste site” as any site where (1) a court has determined or DEC has a reasonable basis to suspect that the illegal disposal of solid waste has occurred or (2) DEC knows or has a reasonable basis to suspect that a solid waste management facility which does not have a current monitoring program is impacting drinking water supplies.  As NYSDEC regulations define “solid waste” broadly and classify all fresh groundwater and certain saline groundwater in the state as a potential drinking water sources, this definition could encompass a large number of facilities where soil contamination has the potential to impact groundwater.  The new legislation could also subject sites that have been previously filled, even with what were otherwise innocuous materials, to DEC investigation and potential remediation.

While the legislation instructs DEC, in conjunction with the New York State Department of Health, to publish “a solid waste site mitigation and remediation priority list,” it also states that “DEC shall have the authority to enter all solid waste sites for the purpose of preliminary investigation, mitigation and remediation.”  Preliminary investigation includes subsurface borings and sampling, and if a significant threat associated with hazardous waste is detected during such investigation, the site shall be referred to the New York State Superfund Program for enforcement and remediation.

Even in the absence of hazardous waste, if a solid waste site is found to be “causing or substantially contributing to the contamination of a public drinking water supply” then DEC can order the owner or operator to remediate the site and mitigate its impacts on the water supply.  DEC can also undertake such remediation and mitigation activities itself, drawing on a newly-created “solid waste mitigation account” containing up to $130 million, and seek to recover such costs from the responsible parties, subject to certain statutory and common law defenses incorporated by reference in the budget legislation.

While the scope of the new Title 12 will depend largely on forthcoming DEC regulations, some have questioned the need for the new legislation at all.  In its comments on the proposed budget legislation last March, the New York State Bar Association’s Environmental Law Section wrote that “rather than create an entire new program and risk its adverse unintended consequences, the NYSDEC could employ some of its existing authority to respond to threats to drinking water.”

For additional information, contact Michael Bogin or Jonathan Kalmuss-Katz.