Environmental Law Under The Trump Administration April 18, 2017 James P. Rigano Rigano LLC 538 Broad Hollow Road, Suite 217 Melville, New York 11747 jrigano@riganollc.com

E.P.A. Budget History President E.P.A Budget Range Richard Nixon (1969-1974) (R) $1 billion - $2.4 billion Gerald Ford (1974-1977) (R) $500 million - $700 million Jimmy Carter (1977-1981) (D) $2.7 billion - $5.5 billion Ronald Reagan (1981-1989) (R) $3 billion - $5.4 billion George Bush (1989-1993) (R) $5.1 billion - $6.6 billion Bill Clinton (1993-2001) (D) $6.5 billion - $7.5 billion George W. Bush (2001-2009) (R) $7.6 billion - $8.3 billion Barack Obama (2009-2017) (D) $7.6 billion - $10.3 billion

The Reagan Administration The E.P.A. and its central mission were criticized, regulations were viewed as an obstacle to growth, the agency was seen as bloated, inefficient, exceeding its congressional mandates and costing jobs. The Reagan administration promised to fix it all.

The Reagan Administration In 1981, Reagan chose Anne M. Gorsuch as the E.P.A Administrator. The Administration moved rapidly to slash budgets, reduce environmental enforcement and open public lands for mining, drilling, grazing and other private uses.  During her 22 months as Administrator (1981- 1983), she slashed the E.P.A. budget by 22%, reduced the number of cases filed against polluters, relaxed Clean Air Act regulations, and reduced the total number of E.P.A. employees.

The Reagan Administration There were many internal conflicts, resignations of key officials, complaints of documents being destroyed, and reports of secret meetings with officials of companies under investigation by the agency. When Congress charged the E.P.A with mishandling $1.6 billion the toxic waste Superfund, Gorsuch was forced to resign after she was cited for contempt of Congress for refusing to turn over the Superfund records.

The Reagan Administration In 1983, William D. Ruckelshaus, the E.P.A.’s first Administrator, returns as E.P.A. Administrator to restore stability. The public made it clear that it would not tolerate government backsliding on protecting American’s health and the environment. Ruckelshaus is widely credited for restoring public confidence in the E.P.A. and restoring the ability of the agency to carry out its legal mandate.

The Reagan Administration Year E.P.A Administrator Budget 1980 Walter Barber Jr. $4.7 billion 1981 Anne Gorsuch $3 billion 1982 $3.7 billion 1983 1984 William Ruckelshaus $4.1 billion 1985 $4.4 billion 1986 Lee M. Thomas 1987 $5.4 billion 1988 $5 billion

The Trump Administration Much like President Reagan and Anne Gorsuch, President Trump and his new E.P.A. Administrator Scott Pruitt, are firm believers that the federal government is too big, too powerful and too eager to issue regulations restricting business and growth. Taking the approach of downsizing federal agencies by delegating their functions and services to the individual states or eliminating them entirely.

The Trump Administration Trump’s recent budget outline included a 31% budget cut for the E.P.A. which could result in the loss of 3,200 E.P.A. jobs. Trump’s recent Executive Order instructs federal regulators to rewrite key rules curbing U.S. carbon emissions — namely the Clean Power Plan, which was intended to reduce greenhouse gas emissions from electric plants. The Order also seeks to lift a moratorium on federal coal leasing and remove the requirement that federal officials consider the impact of climate change when making decisions. At the EPA, scientists are encountering renewed skepticism of their work, many employees have seen their offices slated for elimination altogether, and regulators are facing the prospect of dismantling environmental rules many of them spent years creating. Trump’s visit to headquarters was met with frustration, resignation and increasing levels of angst.

Will history repeat itself? Reagan v. Trump Will history repeat itself?

Traditional Environmental Programs and The Trump Effect Clean Air Act (CAA); Clean Water Act (CWA); Resource Conservation and Recovery Act (RCRA); and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CAA: Emissions Permits CWA: Pollutant Discharge Permits RCRA: Regulation of Hazardous Waste All are federal statutes administered by the E.P.A.

Traditional Environmental Programs and The Trump Effect These programs are delegated to the New York State Department of Environmental Conservation (DEC). CERCLA: Liability imposed on Owners and Operators for surface and subsurface contamination. Are big changes expected?

Reporting Obligations Petroleum

Introduction The New York State Department of Environmental Conservation (“NYSDEC”) issued new petroleum regulations effective October 11, 2015 at 6 NYCRR Part 613. These new rules represent extensive changes resulting in the repeal of Parts 612, 613 and 614 and the issuance of a new and substantially revised Part 613. Critical changes include the reporting obligations and requirement for petroleum investigations and cleanups that are set forth in several provisions of the new regulations. There are also substantial design and operational requirements

Enforcement Potential penalties Variations between regions Case Examples

Impact in Real Estate Transactions Consultant performs investigation Finding of petroleum contamination and reporting Effect on transaction Attorney’s obligation to report

New Reporting Requirements Under the previous regulations, which had been in effect for nearly 20 years, “any person with knowledge of a spill, leak or discharge of petroleum” must report the release within 2 hours of discovery. Under the new regulations “a facility must report a suspected leak to the Department’s Spill Hotline (518-457-7362) within 2 hours after discovery...”.

New Reporting Requirements A “facility” is a single or adjacent properties used for common purpose where there is a tank system (including above ground storage tanks) with a storage capacity of more than 1,100 gallons or an underground tank system having a storage capacity of more than 110 gallons. A “facility” does not include what are defined as “operational tank systems” which include hydraulic lift tank systems, lubricating oil systems and electrical transformers. This new reporting obligation, which only applies to the “facility”, has serious implications for consultants representing the purchaser of a property and for lenders.

Reporting Obligations Hazardous Substances

Investigation Soil or groundwater investigation reveals contamination. Separate requirements for hazardous substances, essentially contamination excludes petroleum. Reportable quantity for each hazardous substance is measured in pounds, generally 1 pound up to 100 pounds.

Reporting Owner or operator or their representative must notify the DEC. Determining if the reportable quantity has been released can be difficult or impossible based on soil or groundwater results. Must “immediately” notify the DEC. Penalties for failure to report can be as much as $25,000 per day. Enforcement Examples