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New York City Underground Storage Tank Settlement

The U.S. Attorney for the Southern District of New York and the EPA announced a $1.3 million proposed consent decree with the City of New York involving violations of the Resources Conservation and Recovery Act (RCRA) in connection with the city's underground storage tank systems. The proposed settlement also would require the city to bring substandard tank systems into compliance with federal law and undertake an additional environmental project to improve the city's ability to identify releases from its underground storage tanks.

I. Introduction

The United States and the City of New York (the "City") have entered into a proposed settlement that would resolve a civil litigation brought by the United States against the City regarding violations by the City of the Resource Conservation and Recovery Act, as amended ("RCRA") and its regulations covering underground storage tanks ("USTs"). Under the settlement, the City would pay a civil penalty of $1.3 million and it would bring all its UST systems into compliance with the federal requirements.

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II. Background

In 1988 EPA issued regulations establishing various rules for underground storage tanks. Depending on the age of the tanks, owners and operators were required to implement "release detection" requirements for their tanks over a four year period starting in 1989. Ten years after the issuance of the regulations, existing tanks had to meet upgrading requirements or had to be removed from service. The City owns at least 1600 underground storage tanks in at least 400 locations throughout the New York City metropolitan area, including all five boroughs. The tanks are operated by at least 16 agencies or departments of the City.

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III. Enforcement Action

On December 5, 2002, the United States filed a complaint in the U.S. District Court, Southern District of New York alleging violations of the underground storage tank provisions of RCRA.

The complaint alleged that since at least 1997 and continuing until the filing of the complaint, the City had been violating RCRA regulatory requirements applicable to its UST systems. The Complaint charged that the City had failed to: (1) timely upgrade UST systems; (2) timely and properly provide, operate, maintain, and/or monitor release detection methods; (3) maintain and furnish records concerning compliance with release detection requirements; (4) report, investigate, and confirm suspected releases of regulated substances; (5) comply with performance standards for new UST systems; (6) comply with requirements for closure of certain UST systems;(7) maintain and furnish records concerning closure of UST systems; (8) provide notice of existence of UST systems; and (9) answer an EPA information request in a timely and complete manner. The Complaint sought civil penalties and injunctive relief from the City.

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IV. Settlement

The United States and the City have negotiated a proposed settlement which is now being submitted for public comment. The proposed Consent Decree covers all federal-regulated UST systems owned or operated by the City in the New York City metropolitan area. The City would pay a civil penalty of $1.3 million within 60 days after the effective date of the Consent Decree. EPA believes this to be one of the largest UST penalties in a judicial or administrative case.

Because of this action, the City has already made a serious effort to bring all its UST systems into compliance with the federal requirements but there are still a number of tanks that are not in compliance. Under the Consent Decree, the City is committing to a schedule to bring all its UST systems into compliance. Within 30 days after the effective date of the Consent Decree, the City would comply with all the UST federal requirements, except for upgrades and closures. The upgrade and closure requirements would be met in 2 steps. First, the City would upgrade or permanently close most of its UST systems within one year. UST systems that would be permanently closed during this phase must be temporarily closed first within 90 days of the effective date of the Decree. Second, certain specifically identified UST systems would be upgraded or closed according to the schedule provided in Appendix A of the Consent Decree but not later than September 2008. In addition, three of the largest City agencies - the Police Department, the Fire Department and the Department of Transportation - would implement, for no less than 3 years and at a cost EPA estimates to be at least $500,000, a centralized monitoring plan ("CMP"). The CMP would monitor from a central location the release detection for all the UST systems operated by those agencies. This injunctive relief which goes beyond any explicit UST requirement in EPA's regulations was negotiated to try to improve the City's compliance with release detection requirements.

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V. Reporting Requirements and Stipulated Penalties

The Consent Decree requires quarterly reports to the Agency. The City must detail all activities relating to the compliance schedule and the implementation of the CMP and submit certifications of compliance and CMP implementation. In addition, the City must detail any impediments encountered in satisfying any requirements of the Consent Decree and the steps it has taken to overcome such impediments. Finally, the City is subject to stipulated penalties for violations of this Consent Decree.

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VI. Public Comment and Duration of the Consent Decree

Pursuant to federal regulations, the public will be able to submit comments on the proposed Consent Decree for at least 30 days. As proposed, the Consent Decree would be in effect for a period of no less than 1 year after the City has complied with the upgrade and closure requirements in Appendix A and until it has also complied with all the other requirements of the Consent Decree.

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For additional information, contact:

Michael McGowan
290 Broadway
New York, NY 10007-1866
(212) 637-4972
Michael McGowan (

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